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A former Census Bureau employee who challenged his termination as both unwarranted
and based on discrimination—a “mixed case”—can appeal the Merit Systems Protection
Board’s adverse ruling to a federal district court, even though the MSPB dismissed
for lack of jurisdiction, a divided U.S. Supreme Court ruled (
Perry v. Merit Sys. Prot. Bd.
, U.S., No. 16-399, 6/23/17
).

By a 7-2 vote, the justices June 23 reversed an appeals court
decision that former federal worker Anthony Perry’s only option was to appeal the MSPB’s ruling
to the U.S. Court of Appeals for the Federal Circuit.

Instead, the court said when a federal worker pursues an administrative case alleging
his agency violated both the Civil Service Reform Act and federal anti-discrimination
laws, a federal district court can review from scratch the MSPB’s disposition of the
claims.

That’s true regardless of whether the MSPB decided the merits of the bias claims,
dismissed them for procedural reasons, or said it lacked jurisdiction, Justice Ruth
Bader Ginsburg wrote.

Victory for Federal Workers

“It’s a good win” for federal employees, said Michael Foreman, a Pennsylvania State
University law professor who filed an amicus brief for the Metropolitan Washington
Employment Lawyers Association supporting Perry.

Federal courts have branded as “byzantine” the administrative “maze” that federal
workers must follow to pursue discrimination claims against their employers, Foreman
told Bloomberg BNA June 23. That process can be “extremely difficult to navigate for
lawyers, much less employees,” he said.

The court’s decision allowing federal workers to appeal the MSPB’s rulings in mixed
cases to federal district courts doesn’t make the administrative process any easier,
Foreman said. But it provides “bottom-line protection” that federal workers can get
their discrimination claims heard from scratch in district court after the MSPB rules,
he said.

Christopher Landau, who represented Perry in the Supreme Court, called the ruling
a victory for “all federal employees who seek to vindicate their legal rights in court.”

“Congress established a statutory scheme that sensibly allows federal employees to
pursue both serious civil-service claims and discrimination claims in a single proceeding,”
Landau said in a June 23 email to Bloomberg BNA.

The justices rejected a legal interpretation that would have subjected federal employees
to “expense, delay, and inconvenience” by forcing them to split their “inextricably
related claims” between the Federal Circuit and the district court, said Landau, who
is with Kirkland & Ellis LLP in Washington.

The Justice Department, which represented the MSPB, didn’t respond to Bloomberg BNA’s
request for comment.

Dissent Focuses on Text

Justice Neil Gorsuch, an active questioner during the court’s April 17
oral argument, wrote his first dissenting opinion, joined by Justice Clarence Thomas.

Gorsuch disagreed with the majority’s reasoning that a 2012 Supreme Court
decision that said federal workers can get review in federal district court when the MSPB
dismisses their mixed cases on procedural grounds requires the same result when the
MSPB finds it lacks jurisdiction.

Instead, the court should apply the Civil Service Reform Act “as written” and resist
Perry’s invitation to “tweak” the statute, Gorsuch wrote.

The majority’s statutory rewrite will have “unintended consequences” that skew the
act’s intent and won’t really help federal employees, he said.

Court Leans on Precedent

The majority, however, said the high court in
Kloeckner v. Solis already considered and rejected many of the arguments the government raised for requiring
Federal Circuit review in Perry’s case.

The civil service statute provides that the Federal Circuit should hear workers’ appeals
from the MSPB, and mixed cases are a narrow exception, the Justice Department argued.
Congress wanted to encourage uniform interpretation of federal civil service rules,
so it centralized appeals in the Federal Circuit rather than allow federal courts
across the country to issue conflicting decisions, the government said.

The MSPB dismissed Perry’s case for lack of jurisdiction because it said he left the
Census Bureau under a voluntary settlement in which he released his discrimination
claims, the Justice Department said.

The MSPB’s power under the Civil Service Reform Act is limited to serious “adverse”
personnel actions. Perry’s legal argument that the MSPB wrongly interpreted its jurisdiction
in his case is exactly the type of issue Congress meant the Federal Circuit to decide,
the government argued.

The
Kloeckner decision holds federal workers whose mixed cases are dismissed by the MSPB for procedural
reasons can take their claims to a federal district court rather than the Federal
Circuit.

Nothing in the Civil Service Reform Act requires a different result when the MSPB
says it’s dismissing a worker’s bias claims for lack of “jurisdiction,” Ginsburg wrote.

Instead,
Kloeckner supports the conclusion that if the MSPB dismisses a federal worker’s mixed case
for any reason, including “jurisdiction,” the worker can take his bias claims to federal
district court for de novo review, the court said.

“The review route remains the same when the MSPB types its dismissal of a mixed case
as jurisdictional,” Ginsburg wrote. “As in
Kloeckner, we are mindful that review rights should be read not to protract proceedings, increase
costs, and stymie employees, but to secure expeditious resolutions of the claims employees
present.”

Gorsuch in dissent said he didn’t take issue with
Kloeckner. But nothing in
Kloeckner supports sending issues arising solely under the Civil Service Reform Act, such as
whether the MSPB has jurisdiction, to a district court for review, he said.

To contact the reporter on this story: Kevin McGowan in Washington at
kmcgowan@bna.com

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